08/06/2014

McDonnells on Trial: First whiff of prosecutorial misconduct?

Editor's note:Paul Goldman is a guest columnist for DecisionVirginia.com. The views expressed below are his own and do not necessarily reflect the opinions of NBC12.

I call it like I see it, or like I smell it in this case.

The government stepped over the line yesterday in terms of a prosecutors sworn duty to “do justice” as the rules of the bar require. A defense attorney’s role is easier, it is simply to do whatever you can to get your client off without suborning perjury. The defense attorney is therefore single minded; he/she doesn’t have to worry about being fair to the prosecution.

But the prosecution has a dual role: advocate for conviction, but also minister of justice. Therefore they have a dual role which limits their advocacy at times, so as not to be unfair to the defense. They dropped the ball yesterday.

Let me explain. I am not going to use the witnesses name since she did nothing wrong. So let’s call her Ms. X. She worked as a top staffer for Governor Bob McDonnell’s Secretary of Health and Human Resources Bill Hazel. One August morning in 2011, she gets to work and is told to attend a meeting at the Governor’s Mansion with Jonnie Williams and Maureen McDonnell. It seems the governor wanted Mr. Hazel to go, but he was too busy and the same for his deputy. So, Ms. X got the assignment.

She arrived at the mansion a few hours later. She met with Mrs. McDonnell and the super-salesman – or super scammer to others – for almost an hour, Williams predictably doing all the talking and weaving tales of daring due. Ms. X can’t really member what the “Tic Tac” man said, the moniker used by her colleagues to describe Williams. The Star Scientific Inc. founder had previously met back in late 2011 with Mr. Hazel, also in response to a request from the governor. He handed out packets of his latest “miracle over-the-counter drug,” which he claims can cure everything but Ebola, if you use a few pills every day. Thus, the “Tic Tac” man moniker.

So Ms. X, doing her job, takes notes, which the prosecution discovered highlights references to Governor McDonnell seemingly pushing for UVA and VCU to use government money to research on the possible benefits of Mr. Williams latest “miracle” which the huckster says is as great a discovery as penicillin!

Wow, you say, the smoking Gun. Then there is a separate Ms. X email to Williams a few hours after the meeting saying she was impressed with what he said and that Ms. X looked forward to working with Mrs. McDonnell on making sure things move forward.

Double wow, you say, two smoking guns! Not!

On cross-examination, Ms. X said the notes were merely what Jonnie cliamed at the meeting. To the best of Ms. X’s knowledge, it was just blowing smoke. He never followed-up, she never talked to him again, indeed she had never talked to Mrs. McDonnell before the meeting, much less the governor about whatever Jonnie Williams was hawking.

Despite what it said in the email, Ms. X said she never followed up with the first lady and never had any intention of so doing.

Why then the email? As Ms. X said, it was simply a polite “blow off” message to someone she knew self-evidentially had connections.

Let’s be clear: Ms. X was a prosecution witness. They had therefore talked to her before, or should have talked to her before.

They knew the truth. Indeed, the reason the prosecution used her is because there is simply no other proof of what Williams claimed at this meeting in terms of what McDonnell allegedly promised relative to UVA and VCU research into William’s “miracle OTC drug.”

The government has already claimed McDonnell did what Williams alleges.

This trial is therefore about the government presenting the proof to back up the indictment.

These documents from Ms. X, and her testimony about them, don't add to the case, but might prejudice a juror against McDonnell.

As the Minister of Justice, the government is required to make sure they don't do this despite their passionate and sincere belief in the McDonnell’s guilt.